Excerpt from Thesis :

Criminalization of Pornography

Americans were alternatively shocked, alarmed and delighted when Marilyn Monroe appeared on the cover of the first Playboy magazine in 1953. Since that time, the debate over pornography has become increasingly heated, due in large part to critics who argue that the medium debases women and teaches young people the wrong lessons about human sexuality. To gain some fresh insights about these issues, this paper provides a review of the relevant peer-reviewed and scholarly literature to determine whether pornography should be criminalized in the same fashion and for the same reasons that hate speech is criminalized. A summary of the research and important findings concerning these issues are provided in the conclusion.

Review and Discussion

The issue of pornography has long been the source of controversy for many Western societies, particularly with respect to its implications for gender roles and sexuality (Lofgren-Martenson & Mansson, 2010). For instance, according to Griffith and Adams (2012), "Issues regarding the production and consumption of pornographic materials continue to be an intensely debated social topic" (p. 245). The social context surrounding the debate over whether pornography should be legal or not includes various principles concerning the importance of gender equality and compulsory sex educational courses that place a high priority on unrestricted rights to sexuality for both men and women (Lofgren-Martenson & Mansson, 2010). As a result, the perspectives concerning pornography are largely negative; however, a wide range of views exist on the subject including those who advocate the availability of the medium (Lofgren-Martenson & Mansson, 2010). This point is also made by Griffith and Adams (2009 who emphasize, "As with most controversial topics, there are fervent advocates on both sides of the debate regarding the effects or non-effects of pornography on the viewers, as well as the actors and actresses who appear in adult films" (p. 245).

Many critics maintain that "pornography implicitly endorses recreational sex" in ways that endanger the physical and emotional health of consumers (Sullum, 2009, p. 29). Other critics charge that the use of pornography is a form of infidelity and that pornography is deviant and objectifies the women it depicts (Poulsen, Dean & Galovan, 2013). Likewise, Whisnant and Stark (2004) argue that women are routinely exploited by pornographers in ways that dehumanize them in the eyes of male consumers. In addition, there is also a growing body of literature that associates decreased pornography use with religious beliefs that classify pornography use as being "sinful or destructive to relationships and spiritual health" (Poulsen et al.). By very sharp contrast, advocates counter that pornography use is "a form of sexual expression through which individuals can broaden their understanding of sexuality" (Poulsen et al., p. 73). Other positive effects of pornography purportedly include helping couples "create an erotic climate in which the[y] can experiment and enhance the sexual relationship" (Poulsen et al., 2013, p. 73).

These divergent views about pornography, though, depend on what is regarded as pornographic. According to Poulsen and his associates (2013), "All sexual behavior -- including pornography -- is socially scripted and pornography, in particular, is a word and behavior that is laden with divergent meanings" (p. 72). Indeed, many people today would likely agree with the judgment of Supreme Court Justice Potter Stewart who advised that although he could not precisely define pornography, "he knew it when he saw it."

The determination of pornographic is therefore highly subjective. For instance, according to Black's Law Dictionary (1990), something is pornographic or obscene "if the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest and if it depicts in a patently offensive way sexual conduct and if the work taken as a whole lacks serious literary, artistic, political or scientific value" (p. 1161). The U.S. Supreme Court has held that local community standards should apply to the definition of pornography and that a national definition was not required (Moretti, 1984).

Notwithstanding the publication of Playboy and its offshoots in the interim, in 1971, Denmark and Sweden became the first countries in the world to completely legalize "full-insertion"-type pornography that is currently contained in Hustler and its ilk (Lofgren-Martenson & Mannson, 2010). Since that time, the content and the manner in which it is distributed have changed in fundamental ways that have expanded the boundaries of pornography (Lofgren-Martenson & Mannson). In this regard, Lofgren-Martenson and Mannson report that, "Pictures and images that society defined as pornography some decades ago now appear in mainstream media. At the same time, it is clear that the visibility and accessibility of hardcore pornography in public space has increased dramatically over the last decade, not least due to the Internet" (p. 568). Indeed, the Internet has been assigned its very own pornography extension (." xxx") and pornography has been introduced slowly but surely into the mainstream media of many countries as well. For example, Lofgren-Martenson and Mannson point out that, "Television programs, advertisements, and the music industry exploit and play with pornographic codes and scenarios. The pornography industry also launches and promotes its products via youth channels and Web sites" (p. 568). In fact, there is an "anything-goes" quality to pornography, even in the mainstream media, provided that children are not involved. According to Moretti (1986),"As long as children are not involved, the courts generally will strive to permit the exhibition or publication of pornographic material. When children are involved, courts will strive to ban the material" (p. 37).

While some adults are clearly leading this introduction of pornography into the mainstream media, other adults are also circling the wagons in opposition and emotions run high in this charged environment. In this regard, Sharp (2002) emphasizes that, "Because they derive from differences over fundamental values and moral concerns, these conflicts over morality issues are often extraordinarily passionate and strident" (p. 861). Irrespective of the moral arguments involved, though, the bottom-line impact of these decisions will inevitably affect young people who are some of the most ardent users of pornography. According to Lofgren-Martenson and Mannson, "Relationships have been forged between pornography and youth culture, which is somewhat of a new development. Even if it is a general aspect of popular culture, the so-called 'mainstreaming' of pornography has special significance for young people" (p. 568). This "special significance" concerns the use of pornography to learn more about anatomy of the opposite sex and natural curiosity concerning various sexual activities (Lofgren-Martenson & Mannson).

Notwithstanding the purported positive effects of pornography, many opponents continue to rely on the argument that pornography is harmful to the women it portrays as well as the consumers of pornography who formulate erroneous perceptions about women and human relationships as a result. From this perspective, the negative effects of pornography are tantamount to hate crimes that target specific groups for attack. For instance, according to Coker (2011), "On October 28, 2009, President Barack Obama signed into law the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act ("HCPA") [which] broadens federal hate crime law to incorporate violence motivated by the . . . gender, sexual orientation, gender identity, or disability of the victim" (p. 271).

From a broad perspective, then, the argument could be made that by demeaning and victimizing women, pornographers are committing hate crimes that are motivated by "gender, sexual orientation or gender identity" (Coker, p. 271). This perspective, though, requires concrete findings that pornography is in fact intentionally targeting people on these gender-related bases and also causes them harm as a result. While pornography may in fact create many of the problems that are associated with the medium, it would be a far stretch to apply the hate crime definition to pornographers who hire and pay willing actors and actresses to perform in their productions. To the extent that pornography is equated to hate crimes is likely the extent to which the pornography industry and mainstream media would react to counter such moves. As Weinstein (1999) points out, "Pornography is big business. Like all powerful interests in this country, the pornography industry has political clout that alone might be sufficient to block bans on its product, especially if such a ban were to include mainstream 'soft-core' publications and films" (p. 136). The First Amendment to the U.S. Constitution is quickly brought to bear on this argument as well. While the argument can be made that pornography targets women for exploitation and that the pornography that is generated as a result is vile and demeaning to women, the fundamental issue involved is the right to have access to these types of publications and presentations irrespective of their motivation.

Indeed, banning pornography because of these alleged ties to hate crimes is a very slippery slope that could easily snowball out of control. In this regard, Weinstein (1999) emphasizes that, "The political power of the pornography industry is minuscule when compared to the various organizations of publishers and broadcasters who, although not themselves distributors of pornography, could be counted on to oppose a national ban on pornography…